Deciding how much time a person should spend in prison for a serious crime is an inherently moral and political act. And it is certainly coldhearted and philosophically problematic to view sentencing as just an agency problem with criminal defendants as objects of a system in which prison terms are simply outputs. So I will not even try to justify resorting to a narrow institutional perspective as a normative matter. But, for better or worse, those political actors with the greatest influence on sentencing regimes have to think in aggregate terms. While there is considerable normative appeal to the idea of courtroom actors, and particularly judges, crafting an individualized sentence for each defendant, we need also to recognize that for elected officials at the top of the prosecutorial hierarchy, sentencing – particularly sentencing after a negotiated guilty plea – presents just another iteration of the classic problem of administrative law: how to limit the ability of agents to take advantage of informational asymmetries to slack off or import their own policy preferences.
Daniel C. Richman,
Institutional Coordination and Sentencing Reform,
Texas L. Rev.
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